When migrants arrive at the southern border and ask for asylum, they currently face two possibilities: Either they’re turned away and shut out of the asylum system under Title 42, the Trump-era public health order Biden has kept in place despite lifting other pandemic restrictions, or they’re admitted into the country and allowed to pursue their cases in immigration court. Those lucky enough to be exempted from Title 42 and admitted into the country—people Mexico won’t accept because of their nationality, including Cubans, Venezuelans, and Ecuadorians—then face a second set of possibilities. Depending on whether they have children with them, family members or other sponsors in the United States, and the availability of beds in detention, as well as other factors, they may be detained in Immigration and Customs Enforcement facilities, subjected to electronic monitoring under ICE’s Alternatives to Detention (ATD) program, or simply told to report to immigration court on their hearing date. The latter option is becoming increasingly rare: An unprecedented number of noncitizens have been enrolled in ATD under the Biden administration. While Biden has reduced the overall number of migrants in ICE detention, his administration has also presided over a significant expansion of electronic monitoring—a scheme that advocates say harms migrants, even as it claims to be more humane than traditional detention.
All told, ICE is monitoring at least 316,700 people through its Alternatives to Detention program, according to federal data analyzed by researchers at Syracuse University’s Transactional Records Access Clearinghouse (TRAC). The majority of those enrolled in ATD in recent months have two things in common: They were apprehended at the border and hail from countries that have largely been exempted from Title 42, including Venezuela, Nicaragua, Ecuador, and Brazil, according to a separate TRAC report. Notably, the majority of people currently in ICE detention—70 percent, according to the most recent data available—were transferred there from Customs and Border Protection custody rather than arrested in the interior of the country. In other words, both ICE detention and ATD are mostly being used to detain and surveil recently arrived asylum seekers that the administration can’t exclude via Title 42.
Monitoring through ATD is undoubtedly preferable to being detained in ICE’s notoriously substandard facilities, but all alternatives to detention nonetheless rely on a worldview in which migrants are inherently criminal and worthy of surveillance. Much like the “smart wall” Democrats claimed would be a humane alternative to Trump’s border wall, Biden’s expansion of detention alternatives that rely on surveilling migrants is indicative of restrictionists’ control over the immigration debate. Immigration cases are handled by civil—not criminal—courts, and immigration detention is not meant to be used as a punishment for being in the United States without authorization or seeking asylum. Instead, it’s supposed to ensure that people attend their hearings.
ICE introduced its Intensive Supervision Appearance Program, its first attempt at alternatives to detention, in 2004. It was supposed to be a way of ensuring that noncitizens—both those apprehended at the border and those arrested by ICE in the interior of the country—attend their hearings without keeping them confined in prison-like detention centers. Instead, the number of people in federal immigration custody increased steadily over the years, as did the funding for ICE detention. On average, ICE held 21,928 people per day in its facilities during the 2004 fiscal year; aside from a slight dip to 19,718 during fiscal 2005, the average detained population increased every year over the next decade. Even though the idea was to reduce detention numbers, the program actually helped ICE keep tabs on more people through a combination of incarceration and digital surveillance. By the 2015 fiscal year, ICE was monitoring more than 30,000 people a year through various alternatives to detention, including ISAP. That same year, 355,729 people cycled in and out of ICE detention, with an average daily detained population of more than 28,000.
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Earlier this year, 25 Democratic members of Congress wrote a letter to DHS Secretary Alejandro Mayorkas asking him to “divert resources from detention programs like ISAP to community-based services” that better serve immigrant communities. The lawmakers noted that the budgets for ISAP and ICE detention have increased in tandem, making ISAP a supplement rather than a true alternative to detention. ISAP’s budget rose from $28 million in 2006 to $475 million in 2021, they wrote. Meanwhile, ICE’s budget nearly tripled during the same time, skyrocketing from $1 billion in 2006 to $2.8 billion in 2021.
Still, the Biden administration seems to be all in on ISAP. The Biden administration announced its plan to introduce a “home curfew” pilot program under ISAP, which would require some immigrants to remain in their homes from 8 pm until 8 am. Administration officials framed home confinement as a cheaper, more humane alternative to mass incarceration. Putting migrants on house arrest is expected to cost $6 to $8 per person per day, compared to a daily cost of $142 for detention, officials told Reuters. “We just don’t have the capacity,” a DHS official said. “We’re not going to detain our way out of the border crisis.”
ISAP was initially a check-in program: Most people enrolled in it were required to report to an ICE officer on a specific date and time. By 2015, however, the agency was increasingly requiring people enrolled in ISAP to wear electronic ankle monitors, according to a report from The Guardian. These ankle monitors took both a physical and emotional toll on the people required to wear them. A 2021 survey published by the Benjamin Cardozo School of Law found that 90 percent of respondents had experienced harm to their physical health due to their ankle monitors, such as aches, pains, excessive heat, or inflammation; 20 percent had received electric shocks from the devices.
As of September, ICE was using ankle monitors to surveil nearly 41,000 people, according to federal data analyzed by TRAC. The overwhelming majority of the 316,700 people enrolled in ATD are instead monitored through an app called SmartLINK, which is used to track 255,602 people, per the most recently available figures. Immigrants monitored via SmartLINK are supposed to send selfies on certain days to verify that they are where they say they are.
The ATD program is monopolized by a single company: BI Enterprises, a subsidiary of the GEO Group, one of the largest private prison operators in the country. Earlier this year, seven former BI Enterprises employees told The Guardian that their caseloads were too large for them to provide immigrants with tailored help. Case managers were tasked with monitoring anywhere from 125 to 300 people at a time, former employees said, and their main responsibility was dealing with malfunctioning ankle monitors and the buggy SmartLINK app. One former employee said the app often glitched precisely when people were required to upload geotagged selfies, preventing them from complying with the conditions of their surveillance.
While this kind of monitoring is less invasive than having to wear an ankle monitor 24/7, there are various reports of immigrants experiencing psychological distress from the app, especially when it malfunctions. “I had an ankle monitor,” a Honduran immigrant who is required to use SmartLINK told the immigration news website Documented. “They took off my ankle monitor and they’re making me use that app. It’s as if I still had it on.”
It’s evident that ISAP isn’t an alternative to detention but rather an extension of it. The notion that non-detained immigrants need to be monitored in order to ensure that they don’t skip court suggests that immigrants are inherently untrustworthy; the implication is that if they aren’t surveilled at all times, migrants will simply disappear into the country. A truly humane alternative to detention would ensure that migrants are given the resources they need to attend their hearings, such as legal representation or case managers. A 2021 study by the American Immigration Council found that 96 percent of non-detained immigrants with legal representation attended all their hearings between 2008 and 2018. Since immigration cases are adjudicated in civil courts, people fighting deportation aren’t given free, government-appointed counsel if they can’t afford legal representation. If the Biden administration were interested in effective, humane alternatives to detention, it would fund a public defense program for the immigration courts. Instead, people in deportation proceedings are subjected to constant surveillance at best and pretrial detention at worst, all in the name of border security.
